Veritas v. The N.Y. Times Co.
| Citation | 2021 NY Slip Op 32892 (U) |
| Decision Date | 12 August 2021 |
| Docket Number | Index 63921/2020 |
| Parties | PROJECT VERITAS, Plaintiff, v. THE NEW YORK TIMES COMPANY, MAGGIE ASTOR, TIFFANY HSU, AND JOHN DOES 1-5, Defendants. |
| Court | United States State Supreme Court (New York) |
Unpublished Opinion
DECISION & ORDER
The following papers were read on this motion by defendants for an order staying all discovery in this action, pursuant to CPLR §§ 2201 and 5519(c), pending resolution of defendants' appeal of a Decision and Order, dated March 18, 2021, denying defendants' motion . to dismiss pursuant to New York's anti-SLAPP statute, [1] CPLR 3211(g), and CPLR 3211(a)(1) and (a)(7); an interim order staying all discovery in this action, pursuant to CPLR §§ 2201 and 5519(c), pending resolution of defendants' Order to Show Cause[2]; and for such other and further relief as may be just, proper and equitable.
Upon the foregoing papers this motion is determined as follows:
This is an action for defamation against the New York Times and two of its reporters, Maggie Astor and Tiffany Hsu, for their reporting on a video published by Project Veritas on September 27, 2020 attacking mail-in voting in Minnesota and purporting to prove that United States Representative Ilhan Omar ("Rep. Omar") and/or her campaign were connected to or involved in an illegal voter-fraud scheme. On September 29, 2020, the Times published a story by Ms. Astor referring to plaintiffs journalism as a "coordinated disinformation campaign." The story labeled the video report "deceptive," made claims of voter fraud "through unidentified sources and with no verifiable evidence," and accused plaintiff of "[m]aking claims without evidence of ballot harvesting." Despite plaintiffs demands that the alleged false accusations be retracted by the Times, the Times then published online stories by Ms. Hsu in October, 2020 which similarly claimed that plaintiffs video report was an example of "false voter fraud stories," called it "deceptive," and stated that the report made accusations of unlawful voting practices "without named sources or verifiable evidence." Thereafter, on November 2, 2020, plaintiff filed its Complaint asserting five claims for defamation against defendants. On December 18, 2020, defendants moved to dismiss the complaint pursuant to CPLR §§ 3211(a)(1), (a)(7), and the newly amended anti-SLAPP provisions of § 3211(g), which took effect on November 10, 2020. On March 18, 2021, the Court (Wood, J., NYSCEF Doc #131) issued a Decision and Order denying defendants' motion. Defendants filed a notice of appeal on April 8, 2021 and have committed to expeditiously perfect the appeal. Issue was joined on April 12, 2021 by defendants' service of their answer together with defenses and a demand for a jury trial.
Defendants now seek a stay of discovery pending the hearing and determination of their appeal of the Court's denial of defendants' motion to dismiss the action. In sum defendants argue that (i) a stay is necessary to avoid prejudice to defendants and ensure meaningful appellate review; (ii) staying discovery during the pendency of the appeal will not prejudice plaintiff; (iii) denial of a stay would result in the waste of judicial resources and needlessly burden all parties; and (iv) the appeal has merit and raises novel legal questions of first impression.
Defendants first submit that this Court's denial of a stay will prejudice defendants by effectively making it impossible for them to receive the full relief they seek on appeal under New York's anti-SLAPP law — namely, dismissal without the substantial cost and burden of discovery. Defendants argue that the avoidance of such costs is one of the central purposes of New York's newly-amended anti-SLAPP law which was passed to both better facilitate the early dismissal of SLAPP suits and to avoid costly discovery expenses. Defendants submit that if discovery were to proceed pending appeal, then a significant part of the relief sought will be unattainable.
Defendants argue that while New York courts have yet to pass on this precise issue, courts in states with similar anti-SLAPP statutes have repeatedly held that discovery should be stayed pending the outcome of an appeal of the denial of an anti-SLAPP motion to dismiss. All have pointed to the fact that allowing discovery to proceed during the pendency of such an appeal would undermine the very relief sought — namely, the ability to avoid the burdens of discovery and litigation. In support of this assertion, defendants cite to Fabre v Walton, 436 Mass. 517, 521 [Mass. 2002] ["The protections afforded by the anti-SLAPP statute against the harassment and burdens of litigation are in large measure lost if the petitioner is forced to litigate a case to its conclusion before obtaining a definitive judgment through the appellate process."]; Varian Med. Sys., Inc. v Delfino, 35 Cal.4th 180, 193 [Cal. 2005] []; and Gaudette v Davis, 2015 WL 9998075, at *1 [Me. Super. Nov. 19, 2015) (holding "that the discovery and scheduling order in this matter shall remain stayed until resolution of the [anti-SLAPP] appeal in the Law Court"].
Defendants next argue that staying discovery during the pendency of the appeal will not prejudice plaintiff. Defendants submit that the stay is only sought for a short time and will maintain the status quo. If plaintiff prevails in the appeal, the stay will "merely adjourn rather than foreclose" the relief and discovery plaintiff seeks. Defendants argue that a delay in prosecuting claims alone is not sufficient to demonstrate prejudice resulting from a grant of a stay, and that here, plaintiff will suffer no prejudice if a stay is entered. For example, defendants assert there is no evidence at risk of spoliation, no witnesses who are likely to be unavailable after appellate review, no claim that plaintiff is incurring ongoing damages, and, should the Second Department affirm the Order, discovery will proceed unaffected by the stay. Defendants further argue that plaintiff is free to move to vacate the stay if resolution of the appeal is delayed. Finally, defendants assert that plaintiff stands to benefit from any clarification provided by the Second Department regarding the scope of the claims and the appropriate standard of proof under the anti-SLAPP law.
Defendants submit that the Court should grant the stay of discovery in order to avoid the potential waste of judicial resources. They argue that there is no reason for the Court, or the parties, to expend time and resources in connection with discovery while the appeal is pending. If the appeal is successful, defendants argue that this Court and the parties will be spared the burden of expensive and time-consuming discovery. Moreover, any discovery pursuant to dismissed claims will deprive defendants of the protections to which the Second Department may find defendants are entitled, resulting in a waste of time and resources.
Finally, defendants argue they are entitled to a stay of discovery pending appeal because the appeal has merit and raises "novel and important" legal questions of first impression that will benefit from appellate review. Specifically, defendants argue that the November 2020 amendments to New York's anti-SLAPP law dramatically expanded the protections afforded to organizations in expressing their First Amendment rights. Here, defendants state that their appeal seeks, inter alia, to clarify the standards for dismissal under New York's newly amended anti-SLAPP law. They argue that the court should interpret the "substantial basis in law" and "clear and convincing evidence" standards that have yet to be analyzed by the Second Department.
Defendants believe that the Court erred in denying their motion to dismiss by (1) misapplying CPLR § 3211(g)[3] and holding that "the clear and convincing standard" for establishing actual malice — actual knowledge that the challenged statements were false or awareness of their probably falsity — is not relevant when applying the anti-SLAPP statute, which, had the Court properly applied the standard, would have been dispositive for defendants' defense, given the lack of evidence submitted by plaintiff; (2) construing the "substantial basis in law" standard imposed by the anti-SLAPP statute as being "below the standard for summary judgment" without imposing any heightened burden upon plaintiff in response to defendants' motion under § 3211(g); and (3) misstating the law of defamation with respect to non-actionable statements of opinion by requiring defendants to expressly state that an item is opinion for it to be found to be one. With respect to the Court's first alleged error, defendants state that the anti-SLAPP law requires plaintiff to carry the high burden of demonstrating that its claims have a substantial basis in law, yet the Court failed to correctly apply the "substantial basis" standard to the actual malice element of plaintiff s causes of action in two ways. First, it held that Project Veritas did not need to demonstrate actual malice by clear and convincing evidence except in connection with a motion for summary judgment. In reaching this conclusion, the Court relied on a decision by the Second Department interpreting CPLR 3211(h), which also imposes a "substantial basis in law", standard. Defendants argue that...
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